Jury Argument — Part II

In a prior post on this topic, I addressed permissible jury argument. In this post and one that follows [editor’s note: coming next week], I address impermissible argument.

The courts have identified several types of arguments that are improper. They include:

• Abusive Arguments. During a closing argument a lawyer may not become abusive. G.S. 15A-1230(a); N.C. R. Super. and Dist. Cts. Rule. 12 (“Abusive language [is] prohibited”); State v. Matthews, 358 N.C. 102, 111-12 (2004) (inappropriate to refer to the defense case as “bull crap”); State v. Jones, 355 N.C. 117, 127 (2002) (citing the statute); see also State v. Gillikin, __ N.C. App. __, 719 S.E.2d 164, 171 (2011) (gross impropriety where the prosecutor engaged in abusive name-calling and expressed his opinion that defendant was a liar and was guilty).
• Lack of Dignity or Propriety. During jury argument lawyers must conduct themselves with “dignity and propriety.” N.C. R. Super. and Dist. Cts. Rule 12; see also Gillikin, __ N.C. App. __, 719 S.E.2d at 171 (entire argument was undignified).
• Arguments Appealing to Passion or Prejudice. It is improper to make an argument designed to appeal to the jurors’ passions or prejudices. See, e.g., Jones, 355 N.C. at 132-33 (reference to the Columbine school shooting and Oklahoma City federal building bombing was an improper attempt to lead jurors away from the evidence by appealing instead to their sense of passion and prejudice).
• Lack of Candor and Unfairness. “The conduct of the lawyers before the court and with other lawyers should be characterized by candor and fairness.” N.C. R. Super. and Dist. Cts. Rule 12. Thus, for example, counsel should not “‘not knowingly misinterpret . . . the language or argument of opposite counsel.’” State v. Phillips, 365 N.C. 103, 136-37 (2011) (quoting R. 12; prosecutor improperly suggested that defense counsel had admitted the defendant’s guilt to first-degree murder).
• Matters Outside the Record. A lawyer may not make arguments based on matters outside the record except for matters that are the proper subject of judicial notice. G.S. 15A-1230(a). Thus, a lawyer may not argue facts that are not in evidence. See, e.g., State v. Jones, 355 N.C. 117, 132 (2002) (improper to refer to events outside of the record); State v. Caldwell, 68 N.C. App. 488, 489 (1984) (improper to make assertions about why a witness did not testify when explanation was not supported by the evidence); see also N.C. R. Prof’l Conduct Rule 3.4(e) (lawyer may not “allude to any matter . . . that will not be supported by admissible evidence”). Additionally, a lawyer may not introduce into argument legal rulings of the trial court. State v. Allen, 353 N.C. 504, 508-11 (2001) (new trial required; prosecutor argued with respect to admitted hearsay statements: “the Court let you hear it, because the Court found they were trustworthy and reliable . . . . If there had been anything wrong with that evidence, you would not have heard that”; the court cautioned: “Parties in a trial must take special care against expressing or revealing to the jury legal rulings which have been made by the trial court, as any such disclosures will have the potential for special influence with the jurors.”).

• Irrelevant Statements of the Law. Although counsel may argue all relevant law, it is improper to argue points of law that have no bearing on the case at hand. See, e.g., State v. Gardner, 316 N.C. 605 (1986).
• Incorrect Statements of the Law. It is improper to misstate the law during jury argument. This means that counsel may not:
  • present a statement of the law out of context, see, e.g., Gardner, 316 N.C. at 610,
  • read from a dissenting opinion in a reported case, see, e.g., id. at 611, or
  • read from a case that no longer has precedential value, see, e.g., id.
  • It also means that the prosecutor may not make arguments that undermine the presumption of innocence. State v. Wilder, 124 N.C. App. 136, 142-43 (1996).

• Arguing that a Result is Mandated By a Prior Case. A lawyer may argue all relevant law to the jury, and this may include reading from prior cases. Caution should be exercised, however, with regard to recitation of the facts of other cases. State v. Wright, 304 N.C. 349 (1981) (“facts of other cases would ordinarily be inappropriate topics for jury argument.” Id. at 355. Additionally, a lawyer may not recite the facts of another tried case together with the result to suggest that a similar result should obtain in the case at hand. Gardner, 316 N.C. at 611; State v. Thomas, 350 N.C. 315, 353-55 (1999) (prosecution’s argument was proper where it was limited to reciting relevant statement of law); State v. Billings, 348 N.C. 169, 185 (1998) (citing Gardner); State v. Burr, 341 N.C. 263, 307 (1995) (same); State v. Simmons, 205 N.C. App. 509, 515-16 (2010) (argument was improper).
• Pretrial Silence. For a discussion of the proper uses at trial of a defendant’s pretrial silence, see my blog post here.
• Comment on the Defendant’s Failure to Plead Guilty. A prosecutor’s reference to a defendant’s failure to plead guilty is a violation of the defendant’s constitutional right to a jury trial. State v. Kemmerlin, 356 N.C. 446, 482 (2002).
• Comment on the Defendant’s Failure to Testify. A defendant has a constitutional right to refuse to testify at trial and exercise of this right may not be used against the defendant. State v. Mitchell, 353 N.C. 309, 326 (2001). As a result any reference to a defendant’s failure to testify violates the defendant’s constitutional rights. Id.; Kemmerlin, 356 N.C. at 481. The rule prohibiting comment on a defendant’s failure to testify applies to both the prosecutor and the defense lawyer. State v. Soloman, 40 N.C. App. 600, 603 (1979). However, a comment on a failure by the defense to put on evidence is not a comment on the defendant’s failure to testify. Also, defense counsel may argue that the jury should not consider against the defendant the defendant’s election not to testify. State v. Banks, 322 N.C. 753, 764 (1988) (error to preclude defense counsel from so arguing).
• Failure To Call a Spouse. A defendant’s failure to call a spouse as a witness may not be used against the defendant. G.S. 8-57(a); State v. Barden, 356 N.C. 316, 380-81 (2002) (prosecutor’s argument was improper).
• Reading the Indictment. Neither lawyer may read the indictment to the jury. G.S. 15A-1221(b).

In my next post on this topic, I’ll pick up with other types of impermissible arguments, including among other things, religious argument and name calling.